Whether the Council was justified in its decision to refuse access to records concerning the Douglas Flood Relief Scheme under sections 15(1)(a), 36(1)(b), and 39(1)(a) of the FOI Act

Conducted in accordance with section 22(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

The applicant is acting on behalf of a company affected by flooding in Douglas, Cork in 2012. The Council was the client authority as agent for the Office of Public Works (OPW) in commissioning consultant engineers to develop a flood relief scheme for Douglas. As part of the scheme, a map showing the "Douglas 1 in 100 year Fluvial Flood Extent" was produced and placed on the Douglas Flood Relief Scheme website (www.douglasfrs.ie). On 3 February 2015, the applicant requested the following records from the Council:

All information and data required to verify the flood flow estimates for Douglas Flood Relief Scheme, namely:

1. A copy of any hydrological report produced
2. The catchment descriptors used for the Ballybrack Stream and Tramore River
3. Details of the flood estimation method used, including any donor gauge sites
4. Details of calculations
5. A copy of any data input and results files for any software used to estimate flood flows (e.g. FSU, WinFAP-FEH, ISIS) Information and data required to verify the flood extents for the Douglas Flood Relief Scheme, namely:
6. Details of topographical survey of the Ballybrack and Tramore river channels including any structures (culverts, bridges); cross-sections, long-sections and a location plan
7. A copy of any digital elevation model (LiDAR) used in hydraulic modelling and any calibration event undertaken sufficient to allow re-running of the model
8. A copy of any hydraulic model data and results files for the 1 in 100 year event and any calibration event undertaken sufficient to allow re-running of the model
9. A copy of any hydraulic modelling report.

On 27 February 2015, the Council decided to refuse access to the records requested. The decision referred to section 39(1)(a) of the FOI Act but made no reference to the public interest balancing test under section 39(2) as required. The applicant sought an internal review of that decision. On 16 April 2015, the Council upheld the original decision, again by reference to section 39(1)(a) and without applying the public interest balancing test. It further appears that no schedule of records was prepared and that the exemption may have been applied to the records as a "class" without examination and consideration of the content of the records by the decision maker as required. On 7 May 2015, the applicant applied to this Office for a review of the Council's decision. The applicant, the Council and the Council's Engineers made submissions in the course of this review. At this stage, I must bring the review to a close by the issue of a formal binding decision as the applicant requires this.

In conducting this review, I have had regard to correspondence between the applicant and the Council, the Council and its Engineers and this Office, to correspondence between the applicant and this Office, to the contents of the records and to the provisions of the FOI Act.

Scope of Review

The scope of this review is confined to (i) whether the Council was justified in refusing to release the records relevant to parts 1 to 4 of the applicant's request on the basis that these records are exempt under section 39(1)(a) of the Act and (ii) whether the Council was justified in refusing to release records relevant to parts 5-9 of the applicant's request on the basis that they are exempt under sections 15(1)(a) and/or 36(1)(b) and/or 39(1)(a) of the Act. The grounds other than the section 39 exemption were advanced by the Council in the course of this review.

Preliminary Matters
Section 22(12)(b) of the FOI Act provides that, where a decision to refuse a request is being reviewed, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Thus, in this case, the onus is on the Council to justify its decision.

I draw attention to the Council's handling of the request which I consider falls well short of what is required by section 13 and other provisions of the Act. When requested to make a submission in support of its decision, the Council revised and expanded upon its position. Given that the Commissioner's review is de novo and takes account of the circumstances at the time of the review, I will consider the additional arguments made. These have been brought to the applicant's attention.

Under section 13(4) of the Act, the actual or perceived reasons for a request must generally be disregarded by the decision maker, including the Information Commissioner (except insofar as such reasons are relevant to consideration of the public interest or other provisions of the Act).

Analysis and Findings

Items 1-4
Section 39(1)(a) - Research
The Council identified three records relevant to items 1-4 of the applicant's request. Record 1 is a Draft Final Hydrology Report; record 2 is a Draft Hydromorphic Audit and Survey and record 3 is a Draft Constraints Report. The Council decided that each of these three records is exempt under section 39(1)(a) of the Act.

Section 39(1)(a) comes under the heading "Research and Natural Resources" in Part 4 of the Act. It is a discretionary exemption which provides that a head may refuse to grant an FOI request if, in the opinion of the head, the record concerned contains information in relation to research being or to be carried out by or on behalf of an FOI body and disclosure of the information or its disclosure before the completion of the research would be likely to expose the body, any person who is or will be carrying out the research on behalf of the body or the subject matter of the research, to serious disadvantage. Section 39(1) does not apply in a case in which, in the opinion of the head concerned the public interest would, on balance, be better served by granting than by refusing to grant the FOI request concerned (section 39(2) refers.)

In its submissions to this Office, the applicant argues that although the Council may commission further investigations or carry out further modelling in the future, the research carried out so far has been completed and a map produced and placed in the public domain. The applicant argues that production of this map is a discrete piece of research that has already been carried out and is therefore outside the scope of section 39, which refers to research being or to be carried out. The applicant argues that the Council appears to have applied a lower threshold for refusal ("it may be highly disadvantageous to release records at this time") than that provided in section 39 "(likely to expose ... any person who is or will be carrying out the research on behalf of the body ... to serious disadvantage"). The applicant argues that the methods used by engineers to develop flood maps are standard across the industry. According to the applicant, the methods use widely available software and the flood map produced by the Council's Engineers did not involve the use of any innovations or unique ideas. Therefore, release of these records would not be likely to cause the Engineers a serious disadvantage.

This Office asked the Council to identify what research remains incomplete and by whom such research is being carried out. It also queried how and why "serious disadvantage" would be likely to occur and sought various clarification as regards the modelling and studies at issue in the records.

In its response, the Council argues that the flood extents map was presented to the public and published as a "preliminary" map, and it is subject to revision and review as the study progresses. According to the Council, it is not complete. The Council submits that disclosure of the information requested by the applicant - who, the Council says is a competitor of the Council's Engineers will cause them to be seriously disadvantaged in future tenders. According to the Council, tenders are marked on quality and price, with the tender going to the consultant with the highest marks. If items which are not "deliverables" under its contract with its Engineers are released, such as the model or the calculations, the Engineers will be disadvantaged as the applicant will be able to strengthen future tender submissions based on this information.

In their submissions to this Office, the Council's Engineers state that their work on the Douglas FRS is ongoing and not yet complete. They say that the reports referred to are in draft format and are subject to change prior to completion of the work. The Engineers submit that the reports are not intended for, and should not be relied upon by any third party. They argue that release of the draft hydrology report would provide their competitors with knowledge that is currently exclusive to them and that this could disadvantage them in tendering for associated works until such time as the Hydrology Report in finalised and put in the public domain. They claim that release of the Draft Hydrology Report would damage them commercially.

It seems to me that the Council, in identifying its Consultant Engineers as the entity to whom the disadvantage would apply, was doing this in the context of the section 39 exemption and did not claim that it was applying the discretionary exemption as regards commercially sensitive records at section 36 of the Act. Likewise, the Engineers were invited to make a submission in the context of the research issues to be considered under section 39(1)(a). I am proceeding on the basis that if the Council believed that the records in items 1-4 were commercially sensitive it would have said so either by making that finding in its decision and/or by using the opportunity offered by this Office to make further, more focussed submissions in order to discharge the burden of proof on it to justify its refusal of the request. I note that in a letter to this Office, dated 24 June 2015, the Council referred to parts 5 -9 of the request as "likely to be regarded as commercially sensitive". I deal separately with this below. I recognise that there may be a degree of overlap between "serious disadvantage" being claimed under the section 39(1)(a) exemption and the harms envisaged in the section 36 exemption concerning commercially sensitive information and I have considered the submissions insofar as they may be relevant to disadvantage of a commercial nature.

The Oxford Dictionary defines research as "the systemic investigation into and study of materials and sources in order to establish facts and reach new conclusions". I accept that the records at issue relate to such investigation and study in order to establish facts and arrive at conclusions on and possible solutions to the flooding problems. The flood map produced by the Engineers is described as a preliminary map; the three reports are marked "draft". I am satisfied that the map and reports may be subject to amendment and that there is no doubt that research on the subject matter of the reports is ongoing. However, it is fair to say that there is some doubt as to whether the specific research leading to the production of the map and the reports in their current form is still being or to be carried out. I understand that the intention is to put these reports into the public domain once the research is complete but the Council is unable to say when this will be. I am prepared to accept that at this point in time the records contain information in relation to research being carried out on behalf of an FOI body as required by section 39(1)(a).

However, the further test to be satisfied is that disclosure before the completion of the research would be likely to expose an FOI body or the person carrying out the research on its behalf to "serious disadvantage". The harms identified by the Council and its Engineers are summarised above. I take the view that the standard provided for in section 39(1)(a) requires a higher degree of harm than the "prejudice" provided for in e.g. section 30(1)(b) and section 36(1)(b). Given the nature of the research and the project for which the Council is the client and the extent to which parts of the records are already in the public domain, I am not satisfied that the submissions have demonstrated sufficient links between release of the records at this time and the harms that could result in order to justify the position that the Council and/or its Engineers would be likely to be exposed to serious disadvantage. I do not consider that section 13(4) allows me to consider as relevant the identity or motivation of the applicant as implied by the Council. I find, therefore, that the Council has not justified its refusal of the request for the hydrology, hydromorphic and constraints reports under section 39(1)(a) of the Act. In light of this finding, it is not necessary to consider the public interest under section 39(2) of the Act.

Items 5, 6, 8, 9

Whether the Council holds the records
The decisions of the Council did not distinguish between the various records in refusing the request in full. However, in its submissions to this Office, the Council states that it does not hold records which are relevant to parts 5-9 of the applicant's request. It says that such records are not "deliverables" under its contract with its Engineers and that it will not have access to these records. According to the Council, its Engineers hold these records and there would be a very significant cost associated with collating and forwarding this information. The Council states that even if it did have access to these records, they contain commercially sensitive information or ongoing research and they would therefore be exempt under sections 36 or 39 of the Act.

Section 2(5) provides that under the Act, a reference to records held by an FOI body includes a reference to records under the control of that body. Records in the possession of independent contractors employed by public bodies are covered by the Act to the extent that they relate to the service being provided to the public body. In this case, the Council confirmed in writing to this Office that the services provided by its Engineers were provided by way of a contract for services. Section 11(9) of the Act provides that:

"A record in the possession of a service provider shall, if and in so far as it relates to the service, be deemed for the purposes of this Act to be held by the FOI Body, and there shall be deemed to be included in the contract for the service a provision that the service provider shall if so requested by the FOI body for the purposes of this Act, give the record to the FOI body for the retention by it for such a period as is reasonable in the particular circumstances."

Section 11(9) makes it clear that records in the possession of the Engineers or other service providers are deemed to be held by the Council and it has a right to have these provided to it for FOI purposes. The service provider is obliged to provide copies of the records to the FOI body concerned. I should say here that there has been no indication that the Engineers were asked to or refused to provide the Council with the records in the course of its consideration of the request. I regard the Council's assertion that it does not hold and cannot access records on items 5-9 to be unsustainable and misleading. The decision making points to poor FOI practice especially since the Council has been subject to the Act since October 1998 and there is substantial training, guidance and other material available through the Central Policy Unit of the Department of Public Expenditure and Reform and elsewhere.

Section 15(1)(a)
The situation now is that the applicant has not been notified of any decision arising from consideration of parts 5-9 of the request. I take this to be an effective refusal of access. The Council referred to sections 15(1)(a), 36(1)(b) and 39(1)(a) in its submissions to this Office on items 5-9. However, it accepts that it has not examined the records. Section 15(1)(a) of the Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The Commissioner's role in a case such as this is to review the decision of the FOI body and to decide whether that decision was justified.

Given that the Council took the position that it should not consider those records even though they came within the scope of the request and are deemed under the Act to be held by it, I find that the Council was not justified in its decision to refuse parts 5-9 of the request under section 15(1)(a) of the Act or otherwise. As regards the Council's comments that sections 36 and section 39 might apply to exempt records which it has not examined, clearly this cannot constitute a decision or even a proper argument to justify its withholding of those records. In addition, the Council's comments concerning the costs involved in collating the information are matters to be considered by it when making a decision in accordance with the provisions of the FOI Act. I do not consider that this Office, in reviewing the public body's decision, is required to obtain, examine and apply the Act to records which ought to have been considered before any decision was made. I am satisfied that the appropriate course of action is to annul the Council's decision and to direct it to undertake a fresh decision making process in relation to items 5-9. The effect of this finding is that Council should obtain any records covered by items 5-9 of the applicant's request from its service providers and make a new, first instance decision in respect of them. The applicant would have a right to internal review and to a review by this Office if he is not satisfied with that decision.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014:
- I annul the decision of the Council that the records relevant to parts 1-4 of the applicant's request are exempt under section 39(1)(a) of the Act; I direct the Council to release these records to the applicant.
- I also annul the Council's decision on records relevant to items 5, 6, 7, 8 and 9; I direct it to make a new, first instance decision in respect of these records and to notify the applicant of this decision in accordance with the section 13 of the FOI Act.

Right of Appeal

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision or, where the party or person concerned contends that the release of a record concerned would contravene a requirement imposed by European Union law, on a finding of fact set out or inherent in the decision. Such an appeal must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.

Elizabeth Dolan
Senior Investigator